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Citizen Counter-Surveillance of the Police? There's an App For That.

Submitted by Bryce Newell on Thu, 05/17/2012 - 15:49

Despite the welcome 7th Circuit decision
in ACLU
v. Alvarez on May 8 that directed a federal district court to enjoin the
application of the Illinois eavesdropping statute to an ACLU police
accountability program, citizens around the country remain vulnerable to arrest
and harassment for recording audio and video of police in public spaces. Cases like Glik
v. Cunniffe and Alvarez indicate that the tides are changing in favor of First
Amendment protections of police oversight and, in Illinois, at least two county
court judges have also found the Illinois eavesdropping statute
unconstitutional. Some, like the ACLU, have launched
initiatives to publicly record audio and video of police conduct, and the
Alvarez case was pursued by the ACLU specifically to allow ALCU staff to
legally record police without fear of reprisal under the eavesdropping statute. (Interestingly, this decision comes just as Chicago is bracing
itself for violent protests during the NATO summit this weekend.)

Along these lines, many
individuals have been using a suite of cell
phone apps developed by open government activist Rich Jones to record audio and
video of encounters with law enforcement officers. Jones launched the OpenWatch.net project in January 2011,
which now boasts three smartphone apps
designed to secretly record citizen encounters
with police officers. Jones has also
produced a version of his software for the ACLU of New Jersey to support their
police accountability programs. In a
recent interview with Jones, he told me that he launched the project to supply technology "to provide documentary evidence of uses and abuses of power…
[as] part of a new wave of document-based journalism."

"If we're going to lose all of our privacy," Jones says, "then we're damn well going to
get some transparency."

In practice, after
downloading the OpenWatch or CopRecorder app to a cell phone, a user just needs to open the app and press a button to record audio (in the case of CopRecorder) or both audio and video (in the case of
OpenWatch) through the camera and microphone built
into their phone. After hitting "record," the app disappears from view to hide the fact that the user is
recording. And when the user reopens the app to end
the recording, they are asked whether they
would like to upload the recording to OpenWatch’s public database.

Jones says he regularly
receives thousands of uploads from app users, and currently receives
about one upload worthy of posting online every three days – although, working
alone, Jones has a large backlog and is currently seeking funding to allow him
to filter through the data he is receiving. Many of the recordings are traffic stops, and most document perfectly
harmless police/citizen interactions.
But Jones claims that other recordings he has received document
evidence of "civil rights abuses at DUI checkpoints in
southern California."

Jones
also reports receiving emails from lawyers and police who are looking to
use the recordings in trials.

"The surprising thing is how many police officers are
using the application," Jones says. "They use it to record their encounters with citizens so
they can use it as evidence in court, or to expose internal procedure (cover
their own asses)."

"Some cops have even emailed asking for help getting the
media off of the phone, and one cop sent an extremely upset letter after
realizing who we were and that he just sent us a confidential recording," he adds.

Liability for Using OpenWatch?

But despite some use of the
apps from within the law enforcement community, Jones has also received very
angry emails over the project and has been frustrated at his inability to find
pro bono counsel willing to provide advice about the potential legal
ramifications of the project moving forward.

One area of concern is the liability of users who make recordings with Jones' apps. While Jones was thrilled by the Glik decision, it is only binding
authority in a handful of New England states and Puerto Rico. Thus, users of
the OpenWatch apps remain potentially liable for violations of state
wiretapping or eavesdropping statutes elsewhere. Indeed, the courts in both Glik and Alvarez dealt directly with overt recording activities, and
the fact that the OpenWatch app allows for covert surveillance (by hiding the
app while recording is in progress) might be outside the scope of the decisions in
those two cases.

For instance, in Massachusetts and the eleven other states that have enacted "all party consent" wiretap laws, the use of the OpenWatch apps to record statements made by police potentially opens an individual up to criminal and/or civil liability for recording conversations without the consent (or at least knowledge) of all parties to the conversation. This risk is compounded in states like Massachusetts where the statutory prohibition extends
to any secret audio recording, regardless of whether the conversation is occurring in a public space where there may be no reasonable expectation that the conversation is actually private. (In Glik, the recording at issue was found not to be secret, as Glik's phone was held up in plain view of the officers and they were aware that he was likely recording them.) Similarly, the Illinois eavesdropping law at issue in Alvarez prohibits the recording of any conversation without consent of all parties "regardless
of whether one or more of the parties intended their communication to
be of a private nature under circumstances justifying that expectation." (See the Illinois
law, or a great discussion by CMLP’s Jeffrey Hermes).

This doesn't appear however to be an issue in the majority of states that
have enacted one-party consent laws – because the consent of any party to a
conversation, including the person making the recording, makes the
recording lawful. But an individual covertly recording a conversation to which he or she
is clearly not a party likely falls outside the protections of the
various state eavesdropping laws.

These laws (and others) raise serious issues for potential users of the OpenWatch apps, and indeed OpenWatch itself, if the apps are used to covertly or secretly record police action as encouraged by the OpenWatch Project. Based on the current state of the law as evidenced by recent court
decisions, it is important for potential or actual users of the system
to understand their own state laws (and the potential fallout) before
deciding to begin using such an application – especially when recording
covertly – as the risk of arrest or harassment continues to loom large
in a number of states.

Liability for Hosting?

Another area of legal concern for OpenWatch is the project's own liability for users' actions. In particular, it is unclear whether the OpenWatch project would qualify
for safe harbor under Section 230 of the Communications Decency Act (47 U.S.C. 230). That section provides immunity to
providers of an “interactive
computer service” that publishes information provided by third parties. Section (c)(1) states that, "No provider or user
of an interactive computer service shall be treated as the publisher or speaker
of any information provided by another information content provider."

An “interactive computer service” is defined, in section (f)(2), as “any information
service, system, or access software provider that provides or enables computer
access by multiple users to a computer server….” This definition would appear to cover the
OpenWatch system, but the Act also includes a number of exceptions and does not protect against liability for content that OpenWatch creates or develops itself.

It
is not entirely clear whether the OpenWatch Project's solicitation for
users to upload recordings that potentially infringe various state laws,
and the resulting decisions made in the process of filtering relevant
files from others prior to posting on the project's website, could make
the project a "co-provider" of the recordings
rather than a passive host.

What OpenWatch's Future Holds

When asked Jones about
the future of OpenWatch, he says “We want to continue to produce technology which confronts
the current notions of power, privacy and surveillance. We'd like to focus more
on the developing world, where corruption is much higher (see our PTSN based
Voice-Dropbox project), on disposable surveillance hardware, streaming
technology, education (see our side project, Lecture Leaks) and expanding our user
base."

"We're also working to produce a federated system of citizen media notary
servers for verifying citizen media with the National Lawyers Guild," he adds. The servers would capture, verify, and store recordings being made during protests in realtime for litigation purposes. "Beyond
that, just more data, data, data."

The utilization of
OpenWatch apps by the ACLU in their programs promoting police accountability
and the right of citizens to record police conduct in public spaces, as well as
the newly sanctioned ACLU program in Illinois (post Alvarez), indicate a positive shift towards stronger First
Amendment rights of American citizens to work for government transparency and
accountability. Certainly, the OpenWatch Project has taken an aggressive stance on the right of citizens to demand transparency from their government and to protect First Amendment rights of citizens to record public conduct of government agents. Efforts such as their recording apps and their collaborations with the ACLU and NLG are definitely pushing boundaries. But while the wind after Glik and Alvarez appears to be blowing in favor of the right to record police in public, the battle is far from won.

Bryce Newell is currently a Ph.D. student at the University of
Washington's Information School and a Graduate Fellow of the Comparative
Law & Society Studies (CLASS) Center. He is also a member of the
California State Bar (inactive) and is currently producing, directing, and editing a documentary film about humanitarian response to migrant deaths along the U.S.-Mexico border.

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